UK: Meltdown For Meltwater? The Supreme Court’s Judgment

Last Updated: 15 May 2013
Article by Adam Edwards

The application of copyright law to the technical processes involved in viewing copyright material on the internet1. Is it an infringement merely to view copyright material when browsing the internet?

Introduction

The owner of a copyright has the exclusive right to do or to authorise a number of acts2. Broadly speaking, it is an infringement to make or distribute copies or adaptations of a protected work. Merely viewing or reading a protected work is not an infringement. 

It is a fundamental and important question affecting millions of EU citizens whether browsing the internet and viewing copyright material 'on screen' are infringements unless licensed by the copyright owner. The ordinary use of the internet will involve the creation of temporary copies  at  several  stages:  internet  routers;  proxy  servers;  the  internet  "cache"  on  the computer hard disk; and the screen copy itself. The Supreme Court found that the key point is that in none of these cases does the end-user set out to make a copy of the web-page unless he chooses to download it or print it out. His object is to view the material. The copies temporarily retained on the screen or in the internet cache are merely the incidental consequence of his use of a computer to do that. 

Background

The Relevant EU Law
The EU has been concerned since the mid 1990s to balance on the one hand its policy that copyright holders should be afforded a high level of protection for intellectual property rights, and on the other the concern that the over-rigid application of copyright law devised for physical media of transmission or storage (e.g. books, film, records, CDs and other copyright works)  would  retard  the commercial development  of  the  internet  and  other  forms  of electronic media technology (e.g. satellite decoders and television screens).

Various member states had, under the Berne Convention 3, legislated in different ways for the treatment of copyright works made available in digital form and these differences were seen as being liable to impede the development of the internal market. The purpose of what became Directive 2001/29/EC4 (the "Directive") was to harmonise the rules across the EU.

The Meltwater Case
The appellant is a professional association of public relations professionals who, among other things, monitor news coverage on behalf of clients and either send them a monitoring report by email or enable the customer to access it on the Meltwater website. Meltwater holds a licence from the publishers of the newspapers to provide their services and it wascommon ground that Meltwater's customers require a licence to receive the service in its present form, being by email. The email copy is not temporary. It is stored on the recipient'shard drive until the end user chooses to delete it.

The question for the appeal was whether Meltwater's customers would need a licence to receive  the  services  if  the  monitoring report  were  made  available  only  on  Meltwater's website. To the extent that the customer downloads the report from the website, he is making a copy that will infringe the newspaper's copyright unless he is licensed. But what if he merely views the material on the website? Proudman J held at first instance that the customer also needed a license for that, and the Court of Appeal agreed with her.

The Directive

Recital 33 of the Directive specifically states that, subject to certain conditions, acts involving the production of temporary copies should be lawful so as to enable internet browsing. Chapter II of the Directive deals with "Rights and Exceptions". Articles 2, 3 and 4 set out the rights of copyright owners and article 5 then qualifies those rights. Article 5.1 creates an exception for temporary copies ("article 5.1").

The Case Law of the Court of Justice (CJEU)

There are three main CJEU cases to which the Supreme Court referred: Infopaq I5; The Premier League Case6; and Infopaq II7. Proudman J and the Court of Appeal only had the benefit of Infopaq I. Lord Sumption's judgment examines these three cases in some detail. Infopaq I sets out the five conditions (the "Conditions") which must be met to comply with the article 5.1 exception for "an act of reproduction": "the act is temporary; it is transient or incidental; it is an integral and essential part of the technological process; the sole purpose of that process is to enable a transmission in a network between third parties by an intermediary of a lawful use of a work or protected subject-matter; and the act has no independent economic significance."  These conditions have to be read together so as to achieve the combined purpose of all of them.

The Supreme Court's ruling on the effect of the CJEU decisions

(1) The article 5.1 exception applies to copies made as an integral and necessary part of a "technological process", and the making of copies is a "necessary" part if it enables it to function "correctly and efficiently". (2) The copies must be temporary – (i) the storage and deletion  of  copyright  material  must  be  automatic  (not  dependent  on  some  further discretionary human intervention) and (ii) the duration of the copy should be limited to what is necessary to the completion of the relevant technological process. (3) The exception applies to lawful uses, including internet browsing. (4) For the purpose of article 5.1 a use of the material is lawful if it is consistent with EU legislation governing the reproduction right, including article 5.1 itself. (5) The making of the temporary copy must have no "independent economic significance", being simply no independent commercial value.

Application to the Meltwater case

The Supreme Court found that "once it is accepted that part of the purpose of article 5.1 is to authorise the making of copies to enable the end-user to view copyright material on the internet  ...  it  must,  if  the  exception  is  to  be  coherent,  apply to  the  ordinary technical processes associated with internet browsing." Conditions 3, 4 and 5 were all held to apply with no room for argument. Further, the Supreme Court found that the copies made in the internet cache or on screen are "transient". Software puts a web-page on screen and into the cache for the purpose of enabling a lawful use of the copyright material, i.e. viewing it. The creation of the copies is only incidental to the technological process involved, such that Conditions 1 and 2 are also fulfilled.

The respondent argued that if the viewing of copyright material on a web-page did not require a licence, the owner would be exposed to large-scale piracy. The Supreme Court was not persuaded and stated that all that article 5.1 achieves is to treat the viewing of copyright material on the internet in the same way as its viewing in physical form. It was pointed out that nothing in article 5 impairs the copyright owner's right to proceed against  those  who  unlawfully  upload  copyright  material  onto  the  internet,  just  as  the copyright owner has always been entitled to proceed against those who make or distribute pirated copies of books, films, music or other protected works.

Having found that article 5.1 extends in principle to temporary copies made for the purpose of browsing by an unlicensed end-user, the Supreme Court found that much of the argument which the courts below had accepted, "unravels".

Reference to the CJEU
To put the matter beyond doubt the Supreme Court found that, before making any order on the appeal, recognising the transnational dimension and that the application of copyright law to internet use has important implications for many millions of people across the EU, it should refer to the CJEU the question of whether the fact that a user can determine when to end his browsing session or to delete his internet cache, complies with the requirement of article 5.1 that acts of reproduction should be (i) temporary, (ii) transient or incidental and (iii) an integral and essential part of the technological process.

Conclusion

Meltwater look as though they will be victorious at the final hurdle, though Lord Sumption commented that perhaps Meltwater's licence fee needed to be increased significantly in view of the value of the rights for which Meltwater is licensed. Subject to the outcome of the reference, the Supreme Court has taken the opportunity to make it clear that the viewing of material from the internet on a computer is as lawful as if it were being viewed in physical form.  

Footnotes

1. Public Relations Consultants Association Ltd (Appellant) v The Newspaper Licensing Agency Ltd and others (Respondents) before Lord Neuberger, President, Lord Kerr, Lord Clarke, Lord Sumption and Lord Carnwath. Judgment given 17 April 2013 [2013] UKSC 182 

2. Sections 16 to 26 of the Copyright, Designs and Patents Act 1988 (the "CDPA")

3. Article 9(2) of the Berne Convention for the Protection of Literary and Artistic Works

4. Section 28A of the CDPA was added by regulation in 2003 to give effect to the Directive 

5. Infopaq I [2010] FSR 20

6. Football Association Premier League Ltd v QC Leisure and Karen Murphy v Media Protection Services Ltd [2012] 1 CMLR 29

7. Infopaq II – a second reference of Infopaq I

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions